First Plaintiff v Defendants

2 The applications before the Court are as follows:

(a) an application for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) ('CPA') by the first defendant, Le Roy Fong ('Mr Fong'), and the fifth defendant, Contour Conveyancing Pty Ltd ('Contour'), for judgment for them against the plaintiffs on their claims in the statement of claim dated 22 October 2019 ('SOC'), made by summons originally filed on 17 February 2020 ('Fong and Contour Summary Judgment Application'). Alternatively, Mr Fong and Contour seek orders that the SOC be struck out pursuant to r 23.02 of the Rules on the grounds that it does not disclose a cause of action; it may prejudice, embarrass or delay the fair trial of the proceeding; or is otherwise an abuse of process of the Court;

(b) an application for summary judgment pursuant to ss 62 and 63 of the CPA, alternatively pursuant to r 23.01(1) of the Rules, for judgment for the third defendant, Mornington Legal Pty Ltd ('ML') against the plaintiffs on their claims in the SOC, made by summons filed 5 March 2020 ('ML Summary Judgment Application'). Alternatively, ML seeks orders that the SOC be struck out pursuant to r 23.02 of the Rules on the same grounds relied upon by Mr Fong and Contour;

(c) an application for summary judgment pursuant to ss 62 and 63 of the CPA, alternatively pursuant to r 23.01(1) of the Rules, for judgment for the fourth defendant, O'Brien Real Estate (ABN 39 144 978 692) ('OBRE') against the plaintiffs on their claims in the SOC, made by summons filed 7 April 2020 ('OBRE Summary Judgment Application'). Alternatively, OBRE seeks orders that the SOC be struck out pursuant to r 23.02 on the same grounds relied on by Mr Fong and Contour, along with the ground that the SOC is scandalous, frivolous or vexatious; and

(d) an application by Mr Fong, pursuant to s 49(2) of the Property Law Act 1958 (Vic) ('PLA') for the release of deposit monies paid by him to the first plaintiff pursuant to a contract of sale for real estate, together with any interest accrued thereon, by Jamelissa Pty Ltd ('Jamelissa') to Mr Fong ('Deposit Application'). The Deposit Application is made by a further amended summons filed 28 April 2020. I will explain this further below.

3 Unless it is necessary to distinguish between them, I shall refer to each of the Fong and Contour Summary Judgment Application, the ML Summary Judgment Application and the OBRE Summary Judgment Application as the Summary Judgment Applications. Likewise, I shall refer to each of the strike out applications as the Strike Out Applications.

4 All of the above applications are opposed by the first and second plaintiffs, Dmitri Mikhailovich Vorontsov ('Mr Vorontsov') and Natalya Ivanovna Vorontsova ('Ms Vorontsova'), respectively. The plaintiffs are representing themselves in this proceeding and in respect of these applications.

5 The second defendant, Classic Finance Pty Ltd ('Classic'), did not make an application and informed the Court that it did not wish to participate in any of these applications.

6 The Fong and Contour summons was listed before me for directions on 21 February 2020. There were no appearances by or on behalf of the plaintiffs and OBRE on that date. I made timetabling orders for the Fong and Contour summons, along with any other similar summonses to be issued by any of the other defendants, and fixed them for hearing before me on 7 April 2020. Pursuant to those orders ('21 February Orders'):

(a) any other summonses seeking summary judgment were to be filed by 6 March 2020;

(b) the plaintiffs were to file any affidavits in opposition by 20 March 2020;

(c) the defendants who had issued summonses were to file any affidavits in reply and written outlines of submissions by 27 March 2020; and

(d) the plaintiffs were to file any written outline by 3 April 2020.

7 ML subsequently filed its summons, and ML, Mr Fong and Contour all filed and served their affidavits and outlines within time. The plaintiffs did not file and serve any affidavits or outlines within time. During the week prior to the scheduled hearing, my Associate contacted the parties to indicate that due to operational changes made by the Court in response to COVID-19, the hearing would be conducted remotely using Skype. The plaintiffs objected to the hearing being conducted by Skype as they said they did not use it. At my instruction, my Associate then informed the parties that I proposed to determine the summonses on the papers. Mr Fong, Contour and ML did not oppose that course. The plaintiffs, who said they were (and are) currently in Europe, requested an extension of time to file and serve their affidavits and submissions. By then, OBRE had filed a notice of appearance and its solicitor indicated that it too would be making a summary judgment application. Accordingly, I made orders on 6 April 2020 vacating the hearing listed for 7 April 2020, extending the timetable for the plaintiffs, and imposing a timetable in respect of OBRE's (then foreshadowed) application ('6 April Orders'). By those orders:

(a) the plaintiffs were to file and serve their affidavits by 23 April 2020;

(b) the relevant defendants were to file and serve any further affidavits, together with any written submissions, by 1 May 2020;[1]

(c) the plaintiffs were to file and serve written submissions by 8 May 2020; and

(d) the applications were to be determined after 8 May 2020 by me on the papers.

8 At the time of making the 6 April Orders, the Deposit Application had not been mentioned to the Court. However, the further amended summons, via which the Deposit Application was made, was filed within time for it to be addressed in the plaintiffs' written submissions.

9 I interpose here to record that after the time specified in the 6 April Orders for the applications to be determined on the papers, that is, after 8 May 2020, but before I had completed doing so, my Chambers was advised that the plaintiffs had on 20 May 2020 obtained judgment in default of defence against OBRE ('Default Judgment'), and that on 27 May 2020 OBRE had filed a summons seeking to set aside the Default Judgment. That summons was listed before me for directions on 5 June 2020 and at the request of the parties I made orders on the papers timetabling the steps for that application, with it to be heard and determined by me (on referral) on the papers on or after 26 June 2020. On 26 June 2020, I made orders setting aside the Default Judgment, for the reasons set out in Vorontsov & Anor v Fong & Ors.[2] On 1 July 2020, OBRE filed its defence in accordance with those orders.

10 I formed the view that it was appropriate to await the outcome of the application to set aside the Default Judgment before deciding the OBRE Summary Judgment Application, and then that it was convenient and efficient for all the Summary Judgment Applications to be determined at the same time. Hence, these reasons and this decision have been delayed by reason of the need to first deal with the Default Judgment.

11 Returning to the applications the subject of this ruling, the materials relied on by Mr Fong and Contour are:

(a) affidavit of Sasho Slaveski sworn 17 February 2020 ('First Slaveski Affidavit'). Mr Slaveski is a principal of J.P. Sesto & Co Lawyers, the solicitors for Mr Fong and Contour in this proceeding;

(b) affidavit of Mr Slaveski sworn 24 March 2020 ('Second Slaveski Affidavit'); and

(c) written submissions dated 27 March 2020 ('First Fong and Contour Written Submissions') and amended supplementary written submissions filed 28 April 2020 ('Supplementary Fong and Contour Written Submissions').

(a) affidavit of Matthew Pomeroy Elvin affirmed 4 March 2020 ('Elvin Affidavit'). Mr Elvin is a solicitor with the firm Elvin Lawyers, the solicitors for ML in this proceeding; and

(b) written submissions dated 27 March 2020, which were subsequently amended on 1 May 2020 ('ML Written Submissions').

(a) affidavit of Michael John Holmes sworn 3 April 2020 ('Holmes Affidavit'). Mr Holmes is a principal of Terrill & Holmes Lawyers, the solicitors for OBRE in this proceeding; and

(b) written submissions dated 29 April 2020 ('OBRE Written Submissions').

(a) affidavit of Mr Vorontsov affirmed 13 February 2020 ('First Vorontsov Affidavit');

(b) affidavit of Mr Vorontsov dated 23 April 2020 ('Second Vorontsov Affidavit');

(c) affidavit of Mr Vorontsov dated 11 May 2020 ('Third Vorontsov Affidavit');[3] and

(d) written submissions prepared by Mr Vorontsov dated 11 May 2020 ('Plaintiffs' Written Submissions').

15 For the reasons set out below, each of the Summary Judgment Applications will be granted. It is therefore not necessary for the Strike Out Applications to be determined.

16 For the reasons set out below, I do not consider it appropriate to grant the Deposit Application at this stage. For the avoidance of any doubt, it needs to be stated that this does not preclude Mr Fong from pursuing the Deposit Application, either through the further amended summons (if so advised) or another application for the return of the deposit, should he wish to do so.

17 This proceeding was commenced by writ filed 22 October 2019 supported by the SOC.

(a) by Mr Fong, dated 17 February 2020 ('Fong Defence');

(b) by Classic, dated 7 February 2020 ('Classic Defence');

(c) by ML, dated 20 December 2019 ('ML Defence');

(d) by OBRE, dated 1 July 2020 ('OBRE Defence'); and

(e) by Contour, dated 17 February 2020 ('Contour Defence').

19 I have attempted to briefly summarise what this proceeding is about as best and as neutrally as I can, from the pleadings and from the affidavits filed in respect of these applications. In order to do so, I have at times had to try and discern what the plaintiffs allege or say, since their material, in particular the SOC, is not especially clear. I will set out aspects of the pleadings and evidence in greater detail later in these reasons.

20 Mr Vorontsov is the registered proprietor of the property located at Unit 11, 40-46 Green Island Avenue, Mount Martha, being the property described in certificate of title volume 11591 folio 889 ('Property').

21 Mr Vorontsov and Mr Fong entered into a contract for the sale by Mr Vorontsov and purchase by Mr Fong of the Property on or around 21 July 2018 ('Sale Contract').[4]

22 The purchase price was $562,000[5] and a deposit of $56,200 was due to be fully paid by 2 August 2018 ('Deposit').[6] Settlement of the Sale Contract was due to occur on 31 August 2018,[7] but this was not able to be effected as Classic had lodged a caveat on the title to the Property on 20 December 2017 ('Classic Caveat') which had not been removed.[8] The time for settlement under the Sale Contract was extended on several occasions, the last of which expired on 29 July 2019.[9]

23 Arrangements were made for Mr Fong to occupy the Property from 31 August 2018 until settlement of the Sale Contract, given that settlement was delayed ('Occupancy Agreement').[10] It appears that the fee payable in respect of that occupation was $250 per week plus gas and electricity usage (on Mr Fong's pleading)[11] or $1,000 per month (on the plaintiffs' pleading).[12]

24 As at 10 October 2019, the Classic Caveat remained registered on title and a default notice under the Sale Contract was served on Mr Vorontsov on behalf of Mr Fong.[13] The default was not remedied within the time provided for in the notice and the Sale Contract was ended on 24 October 2019. On 29 October 2019, a demand was sent to ML and OBRE on behalf of Mr Fong for the return of the Deposit, which has not occurred.[14]

25 At this point I should explain how the various parties to this proceeding fit in:

(a) Mr Vorontsov was the vendor under the Sale Contract and the registered proprietor of the Property;

(b) Ms Vorontsova is the mother of Mr Vorontsov. The plaintiffs appear to allege that she was involved in the Occupancy Agreement with Mr Fong, which I will explain later in these reasons;

(c) Mr Fong was the purchaser under the Sale Contract;

(d) ML was the solicitor for Mr Vorontsov in relation to the Sale Contract until around 22 October 2019. Mr Vorontsov disputes this, which I will deal with later in these reasons;

(e) OBRE is a real estate agent. The SOC and the plaintiffs' affidavits do not explain OBRE's role in this transaction. In the Holmes Affidavit, OBRE's role is explained. Mr Holmes says that he is instructed by Kayn Christopher Leslie Luff ('Mr Luff') that OBRE had no involvement in the sale of the Property. Mr Luff is the director of OBRE Mornington Pty Ltd trading as O'Brien Real Estate Mornington ('OBRE Mornington'), which is a franchise of OBRE and it too had no involvement in the sale of the Property;[15] and

(f) Contour was the conveyancer acting on behalf of Mr Fong in relation to the Sale Contract.

26 Mr Luff is also a director of Jamelissa, and it was that entity, trading as Conley Luff Real Estate Services ('Conley Luff'), which was involved in the sale of the Property.[16]

27 In broad terms, in the SOC the plaintiffs allege that Mr Fong was not entitled to rescind the Sale Contract and that he paid below market rent for the period in which he occupied the Property.[17] Mr Vorontsov claims damages from Mr Fong in the amount of $208,000 for wrongfully terminating the Sale Contract[18] and Ms Vorontsova claims $21,000 for the difference between market rent and what Mr Fong was paying to occupy the Property.[19]

28 The plaintiffs allege in the SOC that Classic has failed to comply with orders made in other Supreme Court proceedings in respect of the Classic Caveat and that it has prevented the Sale Contract from proceeding.[20] Mr Vorontsov claims damages in the amount of $243,000 from Classic.[21] The plaintiffs make several other allegations against Classic, either in the SOC or in Mr Vorontsov's affidavits, however it is not necessary for me to set these out given that no application has been made by Classic. Rather, I have confined these descriptions to those which are necessary to explaining either the background or the claims/defences in respect of the other defendants.

29 The plaintiffs allege that Contour has pressured ML and OBRE to break the Sale Contract without proper basis to release the Deposit.[22] They also allege that ML has released the Deposit without advising Mr Vorontsov[23] and that OBRE has also released the Deposit without advising Mr Vorontsov.[24] Mr Vorontsov claims the amount of $56,200 from each of ML, OBRE and Contour as damages from the release of the Deposit to Mr Fong.[25]

30 Section 62 of the CPA permits a defendant to make an application for summary judgment on the ground that the plaintiff's claim or part of that claim has no real prospect of success. Section 63 of the CPA provides that the Court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has 'no real prospect of success'.

31 The Court of Appeal has set out the test to be applied in this context in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[26] Upon the present state of authority:

(a) The test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) The test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(c) It should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

32 Section 64 of the CPA provides that:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

33 Section 7(1) of the CPA sets out its overarching purpose, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.

34 An application made pursuant to s 62 of the CPA is to be made in accordance with Part 3 of Order 22 of the Rules.

(1) If the defendant intends to reply on an affidavit in support of the application, the affidavit shall be filed with the summons.

(2) Where a statement in a document tends to establish a fact upon which the defendant relies and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit may set forth the statement.

(3) An affidavit relied upon by the defendant may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.

(4) The defendant shall serve the summons and a copy of any affidavit in support and of any exhibit referred to in the affidavit on the plaintiff not less than 14 days before the day for hearing named in the summons.

(1) The plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court.

(2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.

(3) Unless the Court otherwise orders, the plaintiff shall serve a copy of any affidavit and of any exhibit referred to in the affidavit on the defendant not less than three days before the day for hearing named in the summons.

37 Similar rules apply, with the positions of plaintiff and defendant relevantly reversed, in rr 22.04 and 22.05 for situations where the plaintiff is applying for summary judgment against the defendant. The requirements set out in Rules 22.04 and 22.05 were considered by the Court of Appeal in Daniel Simon Hausman and Lance Vincent Hodgkinson v Abigroup Contractors Pty Ltd.[27] It is useful to refer to the Court of Appeal's decision in Hausman v Abigroup, even though it deals with a plaintiff's summary judgment application. The principles set out therein are capable of any necessary modification for the reversal of roles, as the Court has effectively set out what the applicant for summary judgment is required to establish and what the respondent to such an application is also required to do.

38 Of the equivalent of what is now Rule 22.04 in relation to the affidavit in support of summary judgment, the Court of Appeal stated that what 'must be verified are the facts necessary to establish a good cause of action'.[28] Once the plaintiff has established the elements of its cause of action, there is 'something akin' to a shifting of the evidential burden to the defendant.[29]

39 Of the equivalent of what is now Rule 22.05, the Court of the Appeal stated the following (citations omitted):[30]

1. ... Assuming the plaintiff's application is properly made, there will be judgment for the plaintiff unless the defendant shows cause against the application to the satisfaction of the court. The Rule provides that the defendant can show such cause 'by affidavit or otherwise'.
2. The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
3. Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.
4. The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff's claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.

40 The Court of Appeal principles in Hausman v Abigroup extracted in paragraph 39 above remain good law since the advent[31]f the CPA.31

41 I have previously summarised the relevant law and principles, as set out in paragraphs 31 to 33 and 38 to [[32]](#_Ref43215 > It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law. Procedural fairness is 'an essential attribute of a court's procedure'. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances - it must ensure a fair trial and not afford an advantage to the self-represented litigant.

In the decision of the Court of Appeal in Roberts v Harkness,[36] which was applied in Doughty-Cowell v Kyriazis,[37] the Court made it clear that a litigant must have a reasonable opportunity of presenting his case. What amounts to a reasonable opportunity of presenting a case depends on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision ('what is at stake') and the competing demands on the time and resources of the court or tribunal.[38]

43 I respectfully adopt his Honour's summary and have sought to apply these principles in this case. I should also note that all of the communication by the plaintiffs to my Associate has been conducted by Mr Vorontsov and he appears to have prepared all of their documentation, including the SOC. I am aware, through other proceedings I have case managed in this Court, including various applications I have dealt with, that while he is not legally trained, Mr Vorontsov has been involved in a number of proceedings in this Court and in the County Court, during which he represented himself and his mother. In my experience he is relatively familiar with the Rules of this Court and its procedures. Nonetheless, while he may be an experienced litigant accustomed to presenting his own cases, Mr Vorontsov is not legally trained and it is appropriate that I follow and apply the principles I have set out above. That he is not legally trained is apparent from his material: the SOC and his affidavits in this proceeding are at times difficult to follow and lack sufficient precision or information. I have granted extensions of time where requested, and have acceded to Mr Vorontsov's request that the hearing not be held via video technology. He has been afforded sufficient time to present his evidence and submissions on the papers.

44 Mr Vorontsov's claim against Mr Fong is that he wrongfully terminated the Sale Contract and that he is entitled to $208,000 in damages for the wrongful termination. The wrongful termination is expressed in different ways in Mr Vorontsov's material: as terminating the Sale Contract without proper basis under the Transfer of Land Act 1958 (Vic) ('TLA') while receiving a special rental price in lieu of the purchase;[39] and termination of the Sale Contract by Mr Fong without cause.[40]

45 No material facts are pleaded and no particulars are provided in the SOC by which it can be discerned how Mr Vorontsov puts his case in this regard. He does not say what facts as pleaded in the SOC are relied upon for the conclusionary allegation that Mr Fong terminated the Sale Contract without a proper basis.

46 Mr Vorontsov's affidavits also do not contain any detail in these respects. Again, the wrongful termination is baldly stated in a conclusionary way.

47 Given that Mr Vorontsov pleads the First Default Notice (as defined below) served on behalf of Mr Fong, I think it is likely that his allegation about a termination of the Sale Contract without cause is based on a proposition that Mr Fong was not entitled to serve the First Default Notice and therefore was not entitled to terminate the Sale Contract as a consequence of the failure to remedy the default. Although the Second Default Notice (as defined below) is not expressly referred to in the SOC, I assume that Mr Vorontsov has a similar attitude to it as to the First Default Notice.

48 Mr Vorontsov also pleads that Mr Fong knew about the Classic Caveat being registered on the title to the Property.[41] Other than pleading knowledge of the caveat, Mr Vorontsov does not say, either in the SOC or his affidavits, how that fits into his case.

49 Nor are there any material facts pleaded or particulars given, or evidence for that matter, in the SOC or any of Mr Vorontsov's affidavits to explain how it is said that he suffered loss and damage by reason of the termination of the Sale Contract and there is nothing to explain how the amount claimed of $208,000 is arrived at.

50 Mr Fong's defence is that he was entitled to serve the Default Notices and to terminate the Sale Contract. The default is Mr Vorontsov's failure to complete the Sale Contract by providing unencumbered title to the Property by the relevant date.

51 Before going on to set out Mr Fong's defence in more detail, it is convenient here to summarise the pleadings and evidence in respect of the Classic Caveat, since it is the presence of that caveat on title and Mr Vorontsov's failure to procure its removal prior to settlement which is at the heart of the case as between Mr Vorontsov and Mr Fong.

52 As set out above, the Classic Caveat was registered on the title to the Property on 20 December 2017. Its presence on title was disclosed in the vendor statement which Mr Fong received.[42]

53 The plaintiffs allege that by orders made by Justice Moore on 11 December 2018 in proceeding number S ECI 2018 02575, the Registrar of Titles was ordered to remove the Classic Caveat.[43] What is not mentioned in the SOC is that by orders made in proceeding number S ECI 2018 02576 ('Classic Proceeding'), Justice Moore made orders on 13 December 2018 consolidating the first mentioned proceeding with the Classic Proceeding and staying the orders his Honour had made on 11 December 2018.[44] Accordingly, the Classic Caveat remained registered on the title to the Property. In subsequent applications in the Classic Proceeding, orders were made by Derham AsJ on 29 May 2019 declaring that Classic had an equitable charge or mortgage over the Property, ordering the plaintiffs to pay Classic the sum of $300,000 plus interest and costs, and making orders permitting Classic to sell the Property.[45] On 5 August 2019, a warrant of seizure and sale was issued in the Classic Proceeding.[46] On 2 March 2020, I made orders in the Classic Proceeding that, inter alia, Mr Vorontsov deliver up vacant possession of the Property to Classic by 9 March 2020 and that leave be granted to Classic to issue a warrant for possession forthwith, such warrant not to be executed earlier than 11 March 2020.[47]

54 As at 10 October 2019, the Classic Caveat remained registered on the title to the Property and there were two further caveats lodged in favour of other persons in June and July 2019.[48]

55 Returning to other elements of Mr Fong's defence, Mr Fong relies on a number of terms of the Sale Contract. Relevantly,[49]

(a) the purchase price was $562,000;[50]

(b) Mr Fong was to pay a deposit of $56,200 by 2 August 2018 ('Deposit') (of which $2,000 had been paid);[51]

(c) the balance of the purchase price was to be paid at settlement;

(d) settlement was due on 31 August 2018;

(e) Mr Fong bought the property subject to any encumbrance shown in the vendor statement other than mortgages and caveats, and Mr Vorontsov warranted that at settlement he would be the holder of an unencumbered estate in fee simple;

(f) time was of the essence;

(g) the stakeholder would pay the Deposit and any interest thereon to the party entitled to it when the Deposit was released, the contract was settled, or the contract was ended;

(h) upon any default, a default notice giving 14 days to remedy the default was required before any rights in respect of that default could be exercised; and

(i) if the Sale Contract ended by a default notice given by Mr Fong, then he must be repaid any money paid under the contract and be paid any interest and reasonable costs payable under the contract.

56 Mr Fong paid the Deposit to Conley Luff, by paying $2,000 on 12 July 2018 and $54,200 on 1 August 2018.[52]

57 The date by which settlement was due to occur under the Sale Contract was extended, by agreement between Mr Vorontsov and Mr Fong, on nine occasions commencing on or about 13 August 2018 as Mr Vorontsov was unable to complete the Sale Contract by reason of, amongst other things, the presence of the Classic Caveat on the title to the Property. The last of these agreed extensions expired on 29 July 2019.[53] Apart from the first extension, the remaining extensions were contained in email correspondence between Contour and Mr Vorontsov, and the extended settlement dates are recorded in a printout of a history of re-scheduled dates for settlement generated from the Property Exchange Australia property exchange network, the platform through which settlement of the Property was scheduled to be completed.[54]

58 After settlement was extended on or about 11 April 2019 to 30 April 2019, on 18 April 2019 Contour sent an email to Mr Vorontsov notifying him that Mr Fong and his bank needed 21 days after notification from him that he was in a position to effect settlement and asked for confirmation that the Classic Caveat had been withdrawn.[55]

59 After further extensions, on 7 July 2019, Contour sent an email to Mr Vorontsov noting that settlement was due to take place on 29 June [sic: July] 2019 and requested confirmation that Mr Vorontsov would settle on that date.[56] In a reply email on 7 July 2019, Mr Vorontsov stated to Contour that:[57]

I would settle on 29 June [sic] but there is an Order, Classic should organise conveyancing etc.

I'm not seeing a cent from this deal and I won't spend any money to settle, they have the Order, they should pay for it.

60 On 10 October 2019, Contour served on Mr Vorontsov, on Mr Fong's behalf, a default notice of that date due to Mr Vorontsov's failure to complete settlement and stated that unless the default was remedied within 14 days of service of the notice, the Sale Contract would be ended ('First Default Notice').[58]

61 On 22 October 2019, Contour sent an email on behalf of Mr Fong to Mr Vorontsov and to ML, stating that Mr Vorontsov must complete settlement of the Sale Contract on 24 October 2019, failing which it will default; Mr Fong was ready, willing and able to complete settlement; and if settlement was not effected and clear title conveyed by 24 October 2019, the Sale Contract would be at an end ('Second Default Notice').[59]

62 Mr Fong alleges that at no time between 10 and 24 October 2019 was Mr Vorontsov able to complete the Sale Contract, because of, among other things, the presence of the caveats on title, including the Classic Caveat.[60] Mr Fong alleges that as at 31 August 2018 (the original date for settlement in the Sale Contract) and at all relevant times thereafter, he was ready, willing and able to complete the Sale Contract on the basis that at settlement Mr Vorontsov would be the holder of an unencumbered estate in fee simple in the Property.[61]

63 He alleges that the Sale Contract ended on 24 October 2019.[62]

64 Mr Fong says that he did not buy the Property subject to the Classic Caveat, as the Sale Contract expressly provided that the purchaser bought the property subject to any encumbrance shown in the vendor statement other than mortgages and caveats, amongst other exclusions (emphasis added). In addition, the vendor warranted that at settlement he would be the holder of an unencumbered estate in fee simple and would do all things necessary to enable the purchaser to become the registered proprietor. Mr Fong says that Mr Vorontsov was unable to complete the Sale Contract on 31 August 2018 by reason of the presence of the Classic Caveat. He points to the numerous extensions to the settlement date agreed to, with the last extension being to 29 July 2019. Settlement did not occur on that date and there were no further extensions.

65 Accordingly, says Mr Fong, he was entitled to serve the First and Second Default Notices. The default specified in the First Default Notice was not remedied, and settlement did not occur by 24 October 2019, so in accordance with the Second Default Notice the Sale Contract terminated on that date.

66 Mr Fong submits that there is no real prospect that Mr Vorontsov can succeed with a claim that he terminated the Sale Contract without a proper basis or that he is liable in damages to Mr Vorontsov.

67 Mr Fong submits that Mr Vorontsov's claim against him is hopeless.

68 First, he submits that he was entitled to issue the First Default Notice as settlement had not been effected and that the default notice was valid. It was sufficiently clear and unambiguous so as to leave a reasonable recipient in the position of the vendor in no reasonable doubt on how and when the notice is intended to operate. No intelligible basis for the assertion that the Sale Contract was terminated without proper basis can be discerned from the SOC.

69 The Supplementary Fong and Contour Written Submissions make detailed submissions as to the validity of the First Default Notice. I do not need to summarise those here, other than to note that Mr Fong also relies on his rights under the general law to rescind the Sale Contract after it had been repudiated by Mr Vorontsov, on the basis that time is of the essence under the Sale Contract and Mr Vorontsov failed to convey clear title, which shows an intention to no longer be bound such that he could accept the repudiation and immediately put an end to the Sale Contract, without the need for serving a rescission notice.

70 Second, Mr Fong submits that an essential element of a claim for wrongful repudiation is that but for the repudiation, the plaintiff would have been ready and willing to perform any obligation on which the defendant's obligation was conditioned. In this context, readiness and willingness imports ability, as well as disposition, to perform. He says that Mr Vorontsov was not at any relevant time able to perform his obligations under the Sale Contract to deliver clear title to Mr Fong. Mr Fong also says that there is a complete absence of evidence that Mr Vorontsov took any steps to complete settlement or to put himself in a position to convey clear title to Mr Fong by 24 October 2019.

71 Third, Mr Fong submits that Mr Vorontsov could never establish he suffered any damages for the loss of the bargain, even if he had been ready and willing to perform his obligations under the Sale Contract. Mr Fong points to Mr Vorontsov's email of 7 July 2019 to Contour where he said "I'm not seeing a cent from this deal".[63]

72 Mr Fong says that the hopeless nature of the claim against him is reinforced by the fact that on 2 March 2020, orders were made by this Court ordering Mr Vorontsov to deliver up vacant possession of the Property to Classic.

73 The Plaintiffs' Written Submissions are rambling and contain some material which does not appear relevant. What appear to be extracts of documents (at least some of which do not appear to be in evidence) are interspersed with the submissions, at times unclearly, the relevance and import of which is not sufficiently apparent from the submissions.

74 Nonetheless, I have done the best that I can to discern what Mr Vorontsov's submissions may be, based on all of the materials, including his affidavits, the SOC and the Plaintiffs' Written Submissions.

75 The plaintiffs submit that their claims against all defendants have real prospects of success and that the proceedings against all of them should continue to trial.[64]

76 The plaintiffs submit that Mr Fong was fully aware of the Classic Caveat.[65] They then go on to refer to general condition 23 of the Sale Contract which refers to what is to occur if it is a Terms Contract. Quite what that provision has to do with the situation before me is neither apparent nor made clear in the Plaintiffs' Written Submissions.

77 The plaintiffs also make many submissions about their allegations against Classic, for the presence of the Classic Caveat and Classic's failure to remove it. It seems that Mr Vorontsov contends that it is Classic's actions which have prevented settlement, such that the First Default Notice is not relevant and deemed to be void.[66]

78 Mr Vorontsov says that Mr Fong "has admitted that Settlement could not take place due to [Classic] blocking the Settlement during 2018-2019 as per" Mr Vorontsov's affidavits.[67] The Plaintiffs' Written Submission does not explain what is relied upon for this admission.

79 Therefore, as best as I can ascertain it, Mr Vorontsov appears to be submitting that Mr Fong knew about the Classic Caveat, it was Classic's fault that the caveat remained on title, Mr Fong accepted it was Classic's fault, and therefore Mr Fong was not entitled to serve a default notice or to terminate the Sale Contract.

81 That Mr Fong knew about the Classic Caveat on the title to the Property at the time of entering into the Sale Contract is uncontroversial: he says as much in his defence.

82 That there is controversy between Mr Vorontsov and Classic as to whether Classic is at fault for not removing the Classic Caveat, or more broadly whether Classic prevented or blocked settlement of the Sale Contract from occurring, is both irrelevant to the case as between Mr Vorontsov and Mr Fong and not something which I need decide in these applications.

83 The situation here is quite simple: Mr Vorontsov was obliged to settle on a particular date, as subsequently extended; he was obliged to deliver clear title to the Property at settlement; he did not do so; and Mr Fong was entitled to serve the default notices and terminate the Sale Contract when the defaults were not remedied. The purchaser's prior knowledge of the caveat does not mean that the vendor is not obliged to ensure its removal prior to settlement, when that is what the contract requires, as this Sale Contract did. Nor does it matter if the caveat should have been removed by someone else (i.e. the caveator), since it is the vendor's obligation to deliver clear title that is apposite. Despite not being required to extend the dates for settlement, Mr Fong did so on several occasions, such that settlement was extended for some 11 months, and he was entitled to not extend it any further and to serve the default notices and terminate the Sale Contract, and/or to treat the Sale Contract as having been repudiated by Mr Vorontsov and at an end.

84 It follows that Mr Vorontsov has no real prospect of succeeding on his claim against Mr Fong.

85 I accept Mr Fong's submissions, as summarised above, save that I do not necessarily accept the submission that Mr Vorontsov would never be able to establish that he suffered any damages by virtue of his comment to Contour on 7 July 2019. Even if he did not receive any funds from the sale after any mortgages and other encumbrances had been discharged, the discharge of those liabilities could be conceived of as a benefit to Mr Vorontsov. However, there are many matters which Mr Vorontsov would have to establish by way of a damages claim, such as damages for having to conduct a further sale. Such a claim is hypothetical at best, and given the orders made on 2 March 2020, probably not even that. What is clear, though, is that Mr Vorontsov does not, in any of his material, set out what damages he has suffered and how he arrived at the figure of $208,000. Nonetheless, since there is no real prospect of Mr Vorontsov succeeding in his claim that Mr Fong was not entitled to terminate the Sale Contract, the question of damages does not arise.

Payment of the Deposit and where it has been and is held

86 Before considering Mr Vorontsov's case against ML, OBRE and Contour, it is convenient to set out in one section the evidence regarding the payment of and movement of the Deposit.

87 It is the case that on the pleadings, the allegations in respect of the Deposit and transfer of it are unclear and at times contradictory. In part, this is due to the SOC not setting out in clear terms what is alleged about the Deposit. Mostly, though, it is due to unrelated defendants each separately responding to the allegations made against them and assumptions they have each made about the role of the other defendants in the transaction. For example, none of the defendants other than OBRE appear to have picked up that OBRE was not the real estate agent involved in the transaction.

88 Therefore, what I set out below is based on the affidavit material. To the extent that the affidavits are contradicted by other affidavits, then I consider that those entities who say they received or transferred the Deposit are more likely to be correct. Obviously, I do not need to make formal findings in this regard, but coming to some view about them is necessary so as to assess whether Mr Vorontsov's claims in respect of the Deposit have any real prospect of success.

89 Mr Fong paid the Deposit to Conley Luff in two payments: $2,000 on 12 July 2018 and $54,200 on 1 August 2018.[68] A sales trust receipt was issued by Conley Luff in respect of the payment of the Deposit.[69] Conley Luff received payment of the Deposit from Mr Fong.[70]

90 On 13 December 2018, ML sent a letter to Conley Luff requesting the balance of Mr Fong's deposit.[71]

91 On 17 December 2018, Conley Luff transferred to ML's trust account the sum of $44,685, being the deposit less the sale costs and advertising fees charged by Conley Luff ('Part Deposit').[72]

92 On 22 October 2019, ML sent emails to Conley Luff advising that it no longer acted for Mr Vorontsov and requested trust account details so that the Part Deposit could be returned to it. On 24 October 2020, ML received an email from Conley Luff directing it to transfer the Part Deposit to a bank account named 'ConleyLUFF Sales Trust Account' and gave account details.[73]

93 On 24 October 2020, ML transferred the Part Deposit to the bank account provided by Conley Luff.[74]

94 Conley Luff received the Part Deposit on or about 24 October 2019.[75]

95 Mr Fong demanded, in an email sent to ML and OBRE on 25 October 2019, repayment of the Deposit, however it has not been released to him or his representatives.[76]

96 The deposit monies remain in the Conley Luff Sales Trust Account.[77]

97 The only allegations of fact in the SOC against ML are that ML released the Deposit without advising Mr Vorontsov,[78] and that it was released to Mr Fong without a proper basis under the TLA.[79] Based on this, Mr Vorontsov then claims $56,200 from ML.[80]

98 Mr Vorontsov devotes a substantial amount of his affidavits and submissions to a contention that as ML refused to do any further work for him on the transaction after 18 December 2018 unless he deposited $2,000 into its trust account, ML were not his solicitors and therefore had no right to the Deposit or the Part Deposit. Mr Vorontsov says that he did not transfer any funds to ML and no further business was conducted with ML. He says that this founds his allegations against ML, as why was it holding the deposit on his behalf when it clearly stated that it was not representing him.[81]

99 ML denies the allegations against it and says that in a meeting at its office on 13 December 2018, Mr Vorontsov engaged it to act as his solicitor and conveyancer in respect of the sale of the Property pursuant to the Sale Contract. It says that Mr Vorontsov instructed it to obtain the sum of $44,685 from his real estate agent, being the deposit paid by Mr Fong less the costs and fees charged by the real estate agent. The requests for the transfer of the Part Deposit from the real estate agent to it and the transfer are then pleaded, as described above.[82]

100 ML pleads that on 22 October 2019 it ceased acting for Mr Vorontsov.[83] ML sent an email to Mr Vorontsov on that date to that effect. Its reasons for ceasing to act were that it had not been able to contact him.[84]

101 ML also pleads that on 24 October 2019 it received a request from the real estate agent to transfer the Part Deposit to it and that it continued to be the agent for Mr Vorontsov, and ML transferred the Part Deposit as requested.[85]

102 ML pleads that its actions in receiving and subsequently transferring the Part Deposit were done with the authority, express, implied or ostensible, of Mr Vorontsov.[86] It further pleads that pursuant to s 24(2) of the Sale of Land Act 1962 (Vic) ('SLA'), its transfer of deposit monies to a real estate agent acting for the vendor is not a breach of that Act.[87]

103 The factual matters alleged in ML's Defence are deposed to in the Elvin Affidavit.

104 ML submits that taken at its highest, the claim by Mr Vorontsov against it appears to be for his loss of the Part Deposit caused by an alleged breach of duty of some description by ML. It says that in the ML Defence, it denies liability and establishes that it complied both with its duties to Mr Vorontsov and its legal obligations as stakeholder. It also submits that it had no relationship whatsoever with Ms Vorontsova.

105 The ML Written Submissions helpfully set out the relevant stakeholder provisions in the SLA. In summary, the SLA provides that:

(a) deposit monies received by a legal practitioner, conveyancer or estate agent in the course of a transaction for the sale of land shall be held by that person as a stakeholder until the purchaser becomes entitled to a transfer or conveyance of the land at which time the deposit may be paid to the vendor;[88]

(b) a stakeholder may transfer deposit monies to another stakeholder acting for the vendor, with the recipient stakeholder assuming the same stakeholder obligations under the SLA;[89]

(c) if a party rescinds a contract of sale as a result of a default of the other party, the rescinding party is entitled to the deposit monies;[90]

(d) where a legal practitioner, conveyancer or estate agent is holding deposit monies as a stakeholder, then the purchaser may authorise in writing the stakeholder to release the deposit monies to the vendor in his own right or as the vendor directs;[91] and

(e) such written authorisation is not effective unless and until the vendor has given the purchaser a written notice setting out certain particulars if there is a mortgage over the land or a caveat lodged on the title to the land and the purchaser has given notice that he is satisfied with those particulars.[92]

The term 'stakeholder' ... is used in the [SLA] in the normal sense of a person who has received money for the express purpose of holding it until it has been ascertained who is entitled to it.[93]

107 ML submits that if Mr Fong validly rescinded the Sale Contract, then it follows that Mr Vorontsov has not suffered any loss on their claims against ML, as Mr Fong would be entitled to a refund of the deposit pursuant to s 26 of the SLA.

108 ML further submits that regardless of which party rescinded the Sale Contract, the facts and matters asserted in the SOC do not give rise to a reasonably arguable cause of action for breach of contract or duty of care against ML by Mr Vorontsov.

(a) from 13 December 2018 to 24 October 2019, ML was a stakeholder within the meaning of the SLA in respect of the Sale Contract;

(b) within at least the same period, Conley Luff was Mr Vorontsov's estate agent and was also a stakeholder;

(c) the Deposit was deposit monies as defined in the SLA;

(d) the Part Deposit was deposit monies as defined in the SLA;

(e) as per Re Giovanni Tenuta, ML received the Part Deposit for the express purpose of holding until it had been ascertained whether Mr Vorontsov or Mr Fong was entitled to it;

(f) at the time ML transferred the Part Deposit back to Conley Luff, the Sale Contract was afoot and it therefore had not been ascertained whether Mr Vorontsov or Mr Fong was entitled to it;

(g) because ML at no time received any notices under ss 27(3) or 27(4) of the SLA or a written authority from Mr Fong to release the Part Deposit to Mr Vorontsov, ML was bound at all times that it acted for Mr Vorontsov to continue to hold the Part Deposit in its trust account or transfer it to another stakeholder;

(h) after reasonably satisfying itself that the real estate agent continued to be Mr Vorontsov's estate agent and a stakeholder, ML transferred the Part Deposit to Conley Luff;

(i) because the estate agent accepted the transfer, it took place with Mr Vorontsov's imputed consent by reason of the law of agency and was not a breach by ML of its duty of care to Mr Vorontsov;

(j) because the transfer of the Part Deposit to Conley Luff did not alter Mr Vorontsov's interest in and rights to the Part Deposit, it was not a breach by ML of its duty of care to Mr Vorontsov; and

(k) as Conley Luff is still in possession of the Part Deposit and bound as a stakeholder to pay it to Mr Vorontsov if he becomes entitled to it, Mr Vorontsov has suffered no loss by reason of it being transferred by ML to Conley Luff.

110 For these reasons, ML submits that Mr Vorontsov's claims against it have no real prospect of success.

111 The Plaintiffs' Written Submissions repeat much of what is said in Mr Vorontsov's affidavits. The written submissions also seem to add to the allegations against ML: for failing to disclose holding the deposit on his behalf when not representing him;[94] and failing to provide any evidence of transaction details and why the amount changed from $56,200 to $44,685.[95]

112 Mr Vorontsov repeatedly refers to an email from ML on 18 December 2018 to him, which he quotes as stating:[96]

In our initial appointment, information was not provided about the Administrate Notces and this encumbrance was only advised to our office by Capstone Legal. Should you require our office to undertake any further works in your mater, we will require the sum of $2,000 to be placed into our trust account, details of which are as follows ...

We otherwise confirm no further works will be conducted until we are in receipt of funds and are provided with your instructions.

113 Mr Vorontsov relies on this extract of the 18 December 2018 for the proposition that there was only an initial consultation with ML and that they did not act for him.

114 Mr Vorontsov does not refer to the full terms of the email sent to him on 18 December 2018 by ML. That email begins by enclosing an invoice for work conducted to date and then refers to certain notices in respect of the Classic Caveat. It then says that:[97]

You spoke with Chelsea Jenkins of our office yesterday and confirmed that you will be attending to the Administrative Notices encumbered on the Certificate of Title [of the Property]. ... We advise that settlement cannot proceed without the removal of the Administrative Notices and the lodged Caveat.

115 The email then continues on, to state the section Mr Vorontsov has extracted.

116 It is therefore tolerably clear that the purpose of ML's email is to provide its invoice for work already done, to inform Mr Vorontsov that the Classic Caveat needs to be removed, to confirm that he has told ML that he will be dealing with it, and to inform Mr Vorontsov of what he needs to do if he wants ML to deal with it.

117 I do not consider that this email means that ML was not acting for Mr Vorontsov in respect of the Sale Contract at all relevant times.

118 I accept, therefore, that Mr Vorontsov has no real prospect of succeeding in a claim that ML was not a stakeholder acting on his behalf in respect of the Sale Contract.

119 I accept ML's submissions. There is no real prospect that Mr Vorontsov can succeed in a claim against it for breach of contract or breach of duty or, for that matter, a breach of the SLA.

120 Further, there is no evidence to support Mr Vorontsov's allegation that ML released the Deposit or part of it to Mr Fong and there is plenty of evidence to refute that allegation.

121 No allegation against ML based on the amount it held or transferred being the Part Deposit rather than the Full Deposit has a real prospect of success. This is because it only ever held the Part Deposit, and so could only ever transfer the Part Deposit back to Conley Luff when requested.

122 Mr Vorontsov alleges that OBRE released the Deposit without advising him and that he suffered damages in the amount of $56,200 from OBRE releasing the Deposit to Mr Fong without a proper basis under the TLA.

123 OBRE says that it had no relationship with Mr Vorontsov and it did not act as his real estate agent in relation to the Property or the Sale Contract. It says that it is a franchisor and that the real estate agent engaged by Mr Vorontsov in respect of this transaction was Conley Luff. The evidence in the Holmes Affidavit is that Conley Luff received the deposit monies; it transferred the Part Deposit to ML; it received the Part Deposit back from ML; and the deposit monies remain in Conley Luff's trust account.

124 The OBRE Written Submissions are as set out in the previous paragraph. As set out above, OBRE did not file a defence until after the Default Judgment application had been determined. The OBRE Defence is consistent with OBRE's position as expressed in this application and its evidence filed in this application.

125 Mr Vorontsov submits that OBRE received the deposit monies, transferred the Part Deposit to ML and received the Part Deposit back from ML. For this submission, he relies on the Elvin Affidavit and the ML Written Submissions. He does not deal with the contradiction between this submission and his pleading, that OBRE released the Deposit to Mr Fong.

126 There is no evidence to support the allegation that OBRE released the Deposit without advising Mr Vorontsov. Even if it had, such an allegation would presumably need to be founded on OBRE having an obligation to Mr Vorontsov to so advise, and nothing has been pleaded as a source for that obligation.

127 Further, there is no evidence to support Mr Vorontsov's allegation that OBRE released the Deposit or part of it to Mr Fong and there is plenty of evidence to refute that allegation.

128 More importantly, Mr Vorontsov's claims against OBRE have no real prospect of success, as there is no evidence that it ever held the Deposit, let alone released or transferred it, to Mr Fong, ML, or anyone else.

129 It appears that Mr Vorontsov has failed to correctly identify the entity that was his real estate agent in this transaction. The unrefuted evidence is that OBRE is the franchisor for a number of real estate agents trading as franchisees under the O'Brien Real Estate name, and that it never acted for Mr Vorontsov. The unrefuted evidence is that Jamelissa, trading as Conley Luff, was the real estate agent engaged by Mr Vorontsov. That Mr Luff also has another real estate agency, OBRE Mornington, does not bring OBRE into play. It is clear from the Holmes Affidavit that, contrary to Mr Vorontsov's assertion, Conley Luff was not taken over by OBRE Mornington and that OBRE Mornington never acted as Mr Vorontsov's estate agent in this transaction. Mr Vorontsov relies upon the Elvin Affidavit and the ML Written Submissions for this assertion, however to the extent that is contradicted by Mr Holmes or OBRE, that contradiction is accepted. OBRE and its legal representative have direct knowledge about these matters, whereas Mr Elvin and ML have presumably relied upon assumptions they have made about the identity of the real estate agent.

130 Mr Vorontsov's claims against OBRE have no real prospect of success. For completeness, I note that this conclusion is based not just on the evidence establishing that OBRE is not the 'correct' party. Even if OBRE had been the real estate agent and had done with the Deposit and Part Deposit what Conley Luff did with it, there would be no claim against it capable of success, for the same reasons as set out above in respect of ML and the stakeholder provisions of the SLA. Further, for the same reasons, no loss or damage has been caused to Mr Vorontsov by OBRE.

131 In the SOC, it is alleged that Contour pressured ML and OBRE to break the Sale Contract without a proper basis under the TLA to release the Deposit.[98] It is further alleged that Contour has caused financial damages to Mr Vorontsov by releasing the Deposit to Mr Fong without a proper basis under the TLA.[99] Mr Fong claims $56,200 from Contour.[100]

132 Mr Vorontsov's affidavits do not refer to Contour.

133 The Contour Defence repeats much of what is in the Fong Defence. It specifically denies paragraphs 13 and 19 of the SOC, which are the only paragraphs that make allegations against Contour.

134 Contour says that the assertion that Mr Fong received the deposit monies is critical to Mr Vorontsov's claims against Contour. It submits that there is no proper basis for the assertion that the deposit monies were released to Mr Fong and that the evidence filed by OBRE expressly refutes that.

135 Mr Vorontsov does not make any mention of Contour in the Plaintiffs' Written Submissions. As set out above, nothing is said about Contour in his affidavits.

136 Presumably, Mr Vorontsov relies upon the general submission in the Plaintiffs' Written Submissions, as set out in paragraph 75 above.

137 No facts are pleaded or particulars given for the allegation that Contour pressured ML and OBRE to break the Sale Contract without a proper basis under the TLA to release the Deposit.

138 No basis upon which it can be said that Contour released the Deposit to Mr Fong has been pleaded.

139 There is simply no basis in the evidence for a claim that Contour pressured ML or OBRE or that it released the Deposit to Mr Fong.

140 Even if Contour conducted much of the correspondence on Mr Fong's behalf, which seems to be the case from both the Fong Defence, the Contour Defence and Mr Slaveski's affidavits, there is nothing in that correspondence which could be reasonably characterised as pressuring.

141 Mr Vorontsov has no real prospect of success in his claims against Contour.

142 I observe here that the references to the release of the Deposit without a proper basis under the TLA, whether that be in respect of ML, OBRE or Contour, are just that: no provision of the TLA is specified, so it is unclear what Mr Vorontsov refers to in this paragraph of the pleading. It is possible that it is meant to be the SLA which Mr Vorontsov relies upon, but that is not known. Nonetheless, this makes no difference to the outcome since there is no real prospect of Mr Vorontsov succeeding on any claim that the Deposit was released to Mr Fong, or any claim regarding the transfers of the Part Deposit between ML and the estate agent, for the reasons set out above. Hence any amendment to the SOC to clarify this would be futile.

143 The SOC alleges that Ms Vorontsova had an agreement with Mr Vorontsov to rent the Property until the date of settlement, with an option for further extensions.[101] It is alleged that Ms Vorontsova agreed with Mr Vorontsov on the "special price" for Mr Fong "below market rental value in lieu of future" purchase. This is particularised as the agreed amount being $1,000 plus utilities and the market rental being $2,500 plus utilities.[102] The period to be covered by either amount is not stated. It is then pleaded that Ms Vorontsova has suffered financial damages in the amount of $21,000 by Mr Fong terminating the Sale Contract without a proper basis while receiving the "special rental price in lieu of" the purchase.[103]

144 The evidence relied upon regarding these allegations is from Mr Vorontsov, as follows:

(a) Ms Vorontsova has an authority to manage the Property.[104] Exhibit DV-3 is relied upon in this regard, and it states as follows:

AUTHORITY TO MANAGE THE PROPERTY

I, Dmitri Vorontsov provide an Authority to Natalya Voronotsova [sic] to manage the property 11/40 Green Island [sic] Mt Martha 3936

[signature] Dmitri Vorontsov 1/1/18

(b) Ms Vorontsova leased the Property to Mr Fong;[105]

(c) Mr Fong was always late in payment of the rent;[106] and

(d) Mr Fong disregarded messages and claimed that he was not a tenant or the buyer of the Property, while still occupying it. In this regard, Mr Vorontsov refers to exhibit DV-4 to the Second Vorontsov Affidavit.[107] Exhibit DV-4 contains what appear to be screenshots of text messages, between Ms Vorontsova and Mr Fong. The text message in which Mr Fong says that he is neither the tenant nor the buyer appears to have been sent after 2 March 2020 when the Court ordered possession of the Property to be delivered up to Classic. An earlier test message from Ms Vorontsova refers to arrears for the period 27/9/19 to 24/10/19, and then there is a reply from Mr Fong on 5 November 2019 which says that he had just paid up to the end of that week.

145 In his defence, Mr Fong says that as well as agreeing with Mr Vorontsov on 13 August 2018 to an extension of the settlement of the Sale Contract to 30 September 2018, he and Mr Vorontsov agreed that Mr Fong would be permitted to occupy the Property from 31 August 2018 until settlement and Mr Fong would pay Mr Vorontsov $250 per week plus gas and electricity usage ('Occupancy Agreement').[108] Mr Fong particularises the Occupancy Agreement by saying that it was oral and to be implied. To the extent it was oral, it consisted of a conversation between Mr Vorontsov, Mr Fong and Ms Vorontsova at the Property, over dinner, on or about 13 August 2018. To the extent it is implied, it is to be implied from the conduct of Mr Fong and Mr Vorontsov treating themselves as if bound by it.

146 The evidence relied on by Mr Fong is as follows:

(a) the First Slaveski Affidavit deposes to the matters referred to in the previous paragraph, on information and belief;[109]

(b) Mr Fong occupied the Property from 31 August 2018 and paid the fee of $250 per week plus gas and electricity to, or at the direction of, Mr Vorontsov;[110]

(c) on 5 March 2020, after the Court had made orders on 2 March 2020 for the plaintiffs to deliver up vacant possession of the Property to Classic on or before 9 March 2020, Mr Fong agreed with Classic that he would remain in occupation of the Property until 30 March 2020 and he would pay $250 per week commencing 9 March 2020 to Classic;[111]

(d) on 12 March 2020, Mr Fong's keys to the Property would not unlock the doors to allow him access to it and he received a number of messages within a one hour period on that day from Mr Vorontsov via WhatsApp.[112] A transcript of those messages, along with copies of the photos sent by Mr Vorontsov, are at exhibit SS-16 to the Second Slaveski Affidavit. At least one of the photos appears to be of Mr Vorontsov with Quentin Tarantino, the film director, there is also a photo of rolls of toilet paper and a bench with a knife and hammer on it (amongst other things). Extracts of the messages from Mr Vorontsov are below:[113]

You have been Tarantinoed! You do know that having a hummer [sic] and knife by front door is criminal since you are squatting the property. Don't bother, find yourself a hotel or airBnB. The property is mine. ... I have witnesses of the knife and hummer [sic] by front door.

...

Let me ask Tarantino if he cares? Hmmm ... I look forward to our litigation in Supreme. I am suing you for damages in Supreme Court and you will loose [sic]! Hope you have spent enough on lawyers, cause you will spend even more. So much more! ...

...

Fun for not replying?

...

Ohh I just asked Todd Phillips ... nah! No one cares ...

...

Bye

...

Btw, this is what Classic and his lawyers has received from me! It's almost 5 year anniversary with them, we suggested to have a anniversary party. They have been purchased by ASX company, ohh boy this is going to be awesome like when I took Classic to Federal Court! So, do you think I'm afraid of anyone ... come on, ...

(e) as at 17 March 2020, Mr Fong had paid all amounts due to Mr Vorontsov under the Occupancy Agreement up to and including 9 March 2020;[114] and

(f) on 15 March 2020, Mr Fong gained access to the Property, with Classic's consent, and removed his belongings.[115]

147 Mr Fong submits that Ms Vorontsova's claim against him, for damages in the amount of $21,000, represents the difference between the fee Mr Fong agreed to pay to occupy the Property until settlement ($1,000 per month) and the alleged market rental of $2,500 per month.[116]

148 Mr Fong submits that Ms Vorontsova's claim is hopeless.[117]

149 First, he says that he paid the agreed fee up to and including 9 March 2020, being the date by which vacant possession of the Property was to be delivered up to Classic.[118]

150 Second, he says that at no relevant time was Ms Vorontsova the owner of the Property and nor did she have any proprietary interest in it. Thus, it is said that she had no entitlement to receive any rent or occupation fee for Mr Fong's occupation of the Property, and that she therefore has no entitlement to claim damages in connection with that occupation.[119]

151 Third, Mr Fong says that it is impermissible for Ms Vorontsova to effectively renegotiate the terms of the Occupation Agreement and to retrospectively seek to adjust the occupation fee from day one, now that the Sale Contract has come to an end. In this regard, Mr Fong submits that Ms Vorontsova's position is exposed by a message she sent to Mr Fong on 10 March 2020, as follows:[120]

So you paid till 2 March but the price you paid was for the buyer and if you consider yourself not the one then I will continue to push you to pay arrears for the whole period of rent And then since you consider yourself not a buyer on what basis you were occupying my property illegally?[121]

152 Mr Fong further submits that Mr Vorontsov's evidence that Ms Vorontsova had authority to manage the Property for him[122] means that Ms Vorontsova was acting as his agent. If that be the case, then Ms Vorontsova herself cannot have suffered any loss, and so her claim must fail on that basis alone.[123]

153 In addition, Mr Fong submits that no evidence has been adduced to answer his evidence that he has paid the agreed fee up to and including 9 March 2020.[124]

154 The Plaintiffs' Written Outline repeats the matters set out in the SOC and Mr Vorontsov's affidavits in regards to this claim, as I have summarised above. In addition, the plaintiffs presumably rely on the general submission they made which I have set out in paragraph 75 above.

155 The plaintiffs appear to have misconstrued who may have the claim against Mr Fong in respect of the Occupancy Agreement. Given Mr Vorontsov's evidence and the terms of the written authority he gave to Ms Vorontsova, it seems inescapable that to the extent any agreement was made with Ms Vorontsova (as opposed to Mr Vorontsov) she was acting as Mr Vorontsov's agent. Therefore, it is his claim to make, not Ms Vorontsova's.

156 I agree with Mr Fong's submission that this alone means that Ms Vorontsova's claim against him has no real prospect of success.

157 However, I am also required to consider whether this defect in the SOC could be cured by way of an amendment. A court applying the test for summary judgment ought to consider whether any defect in the pleadings can be cured by amendment, but should not permit a pleading amendment which would itself have no real prospects of success.[125]

158 In my view, the SOC could be amended so that Mr Vorontsov is the one bringing the claim, however I do not consider that leave to amend in that regard should be given. This is because such leave would be futile: as set out below, a claim by Mr Vorontsov in respect of the difference between the agreed fee and market rent has no real prospect of success.

159 The evidence is that Mr Fong has paid the agreed fee for the period of his occupation of the Property. That some payments may have been late does not change the fact that all payments have, according to the evidence, been made.

160 There is nothing in the Occupation Agreement to suggest that any other amount was payable. For example, there is no term alleged in the Occupation Agreement to the effect that the agreed rate only applied if settlement occurred under the Sale Contract. There is no evidence of any discussion with Mr Fong at the time the Occupation Agreement was entered into of what the rent would otherwise be, let alone that it would otherwise be market rent or $2,500. Indeed, the SOC does not even plead an agreement between Mr Fong and Ms Vorontsova, or Mr Fong and Mr Vorontsov for that matter. Rather, it pleads an agreement between Mr Vorontsov and Ms Vorontsova. Again, that could be made clearer by way of amendment of the SOC, but it would be futile.

161 I accept Mr Fong's submission that the plaintiffs cannot now unilaterally alter the terms of the Occupation Agreement.

162 The SOC twice refers to the "special price" as being in lieu of the purchase. Given the way in which the evidence and submissions is put by the plaintiffs, I do not read the SOC in this regard to literally mean that Mr Fong was paying the "special price" instead of purchasing the Property. Rather, I think it is intended to allege that Mr Fong was paying the "special price" to occupy the Property until settlement, given that settlement under the Sale Contract was delayed. I mention this so as to make it clear that I have not relied on the literal meaning of these words in the SOC in coming to the conclusion that the claim against Mr Fong in respect of the difference between the agreed fee and what is alleged to be market rent has no real prospect of success.

163 On 28 April 2020, Mr Fong filed a further amended summons by which he makes application pursuant to s 49(2) of the PLA for the release of deposit monies paid by him to Mr Vorontsov pursuant to the Sale Contract together with any interest accrued thereon from Jamelissa. This is what I have defined as the Deposit Application.[126]

164 In the Fong Defence, it is alleged that by email to ML and OBRE on 29 October 2019, on Mr Fong's behalf Contour demanded payment of the Deposit, but the Deposit has not been released to him or his representatives.[127] The evidence in the First Slaveski Affidavit is that this demand was made by email on 25 October 2019 from Contour to ML and OBRE.[128] Mr Slaveski also deposes that the Deposit has not been released to Mr Fong.[129]

165 Section 49 of the PLA provides that:

(1) A vendor or purchaser of any interest in land, or their representatives respectively, may apply to the Court, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the Court may make such order upon the application as to the Court may appear just, and may order how and by whom all or any of the costs of and incident to the application are to be borne and paid.

(2) Where the Court refuses to grant specific performance of a contract, or in any action for the return of a deposit, the Court may, if it thinks fit, order the repayment of any deposit.

(3) This section shall apply to a contract for the sale or exchange of any interest in land.

166 Mr Fong submits that an order for the release of the Deposit to him reflects his contractual, statutory and general law entitlements. It is said that:

(a) General Condition 28 of the Sale Contract provides that if the contract ends by a default notice given by the purchaser, then the purchaser must be repaid any money paid under the contract and interest and reasonable costs payable under the contract;

(b) General Condition 12.2 provides that the stakeholder must pay the deposit and any interest to the party entitled when the deposit is released, the contract is settled, or the contract is ended;

(c) under s 26 of the SLA, if the purchaser rescinds the contract as a result of a default by the vendor, then the purchaser is entitled to the immediate return of the deposit monies; and

(d) at general law, a purchaser can recover his deposit, even if held by a stakeholder, if the purchaser was entitled to and did rescind the contract.

167 On 6 May 2020, Mr Holmes informed my Associate by email, copied to all other parties, that he acted for Jamelissa and that Jamelissa did not oppose the Deposit Application.

168 Mr Fong submits that he was entitled to serve the Default Notice, it was not complied with, and the Sale Contract was ended. It follows, he says, that he is entitled to the immediate return of the Deposit and any interest accrued thereon.

169 The SOC does not make a claim in respect of the entitlement to the Deposit.

170 Mr Vorontsov does not specifically deal with the Deposit Application at all, in his affidavits or in the Plaintiffs' Written Submissions. I assume that he opposes it, based on his allegations that Mr Fong had no entitlement to terminate the Sale Contract.

171 While the Fong Defence alleges that he paid the Deposit, that he demanded its repayment after terminating the Sale Contract, and that it has not been paid to him, there is no claim made in the Fong Defence for the repayment of the Deposit. There is no counterclaim by Mr Fong for the repayment of the Deposit.

172 These proceedings, therefore, do not (at least directly) deal with the entitlement to the Deposit. Indirectly, however, it could be said that if Mr Vorontsov cannot succeed on a claim that Mr Fong was not entitled to terminate the Sale Contract, then it follows that Mr Fong is entitled to the return of the Deposit.

173 It seems to me that an application for summary judgment against the claims made by Mr Vorontsov in this proceeding may not be not an appropriate vehicle for the Deposit Application. If there had been a counterclaim by Mr Fong in respect of the Deposit, or cross-claims made by him against the stakeholder holding the Deposit, then an application for summary judgment on those claims would be capable of giving rise to an order that the Deposit be released to Mr Fong.

174 Ordinarily, one would expect an application for the return of the Deposit to Mr Fong would arise after an entitlement to the Deposit is established and a demand for its repayment is not met.

175 My view is that at the least, the Summary Judgment Applications, particularly that made by Mr Fong, need to be determined and orders made before any order could properly arise in respect of the return of the Deposit.

176 Rule 4.05 of the Rules provides that a proceeding must be commenced by originating motion where, relevantly, by or under any Act an application is authorised to be made to the Court. Therefore, an application under s 49 of the PLA is ordinarily made by way of originating motion. This proceeding was commenced by writ.

177 Whether or not that means an application in this proceeding can be utilised for seeking orders under s 49 of the PLA, or whether a separate application/proceeding is required, is something which Mr Fong and his lawyers can consider.

178 It seems to me that, armed with his orders for summary judgment, along with the orders for summary judgment for ML, OBRE and Contour, Mr Fong is likely to make a formal demand on Jamelissa for the return of the Deposit and any other monies, such as interest, to which he says he is entitled. If that demand is not met, then Mr Fong would be able to pursue an application for the release of the deposit by Jamelissa.

179 None of the matters raised in paragraphs 169 to 177 above, particularly whether the Deposit Application can be made in this proceeding and/or in this way, were addressed by the parties. I am therefore not prepared to make orders in respect of the Deposit Application at this stage.

180 For the reasons set out above, summary judgment will be ordered for Mr Fong, ML, OBRE and Contour. The plaintiffs' claims against them will thereby be dismissed.

181 The summonses filed by ML and OBRE will be otherwise dismissed.

182 I will not, at this stage, make orders otherwise dismissing the further amended summons filed on behalf of Mr Fong and Contour, until Mr Fong's position regarding the further conduct of the Deposit Application is communicated.

183 Within one week of this ruling being delivered, the parties are requested to confer and to provide my Chambers with a proposed form of order to give effect to this ruling and as to costs. If agreement cannot be reached, then the parties should provide the orders they seek and a short written submission of no more than 2 pages as to why their form of order should be preferred. If necessary, the proceeding will be listed for a directions hearing (likely to be conducted as a virtual hearing) to deal with the making of orders.

[1] The defendants who had already filed submissions were not required to repeat them: these submissions were to be supplementary.

[2] [2020] VSC 381.

[3] The Second and Third Vorontsov Affidavits have not been sworn or affirmed due to COVID-19 restrictions, and have been accepted for filing.

[13] Fong Defence [11F], [11G]. The plaintiffs say that the default notice was served on 17 October 2019: SOC [12].

[20] These other proceedings will be briefly explained later in these reasons.

[26] [2013] VSCA 158; (2013) 42 VR 27, 40 [35] (citations omitted).

[27] (2009) VR 213; [2009] VSCA 288 ('Hausman v Abigroup').

[29] See footnote 13 in the reasons of the Court of Appeal in Hausman v Abigroup, where it was stated: 'Whether there is in fact such a burden upon a plaintiff, once the prerequisites for summary judgment have been satisfied, is a difficult question. Rule [22.05] requires a defendant, who is the subject of an application, in proper form, for summary judgment, to "show cause" why such judgment should not be granted. It may be that this imposes upon a defendant an evidential burden, or something akin thereto'.

[30] Hausman v Abigroup, [62]-[65].

[31] Innovateq Australia Pty Ltd and Anor v Barnes and Ors [2016] VSC 618 (Ierodiaconou AsJ), referring to Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2012] VSC 163 and to Portbury Development Pty Ltd v Ottedin Investments Pty Ltd and Ors [2012] VSC 490.

[32] [2018] VSC 301, [19]-[28].

[33] [2019] VSC 323, [41].

[34] [2020] VSC 346.

[35] Daher v Bell [2020] VSC 346, [8]-[9].

[36] (2018) 57 VR 334 ('Roberts').

[37] [2018] VSCA 216 [63]-[64].

[38] Roberts (n 4) 337-55 [8]-[49].

[40] Second Vorontsov Affidavit, [3]; Third Vorontsov Affidavit, [4].

[42] Fong Defence [3(a)]; Contour Defence [3(a)]; Exhibit SS-1 to the First Slaveski Affidavit.

[44] Classic Defence [6]-[8], [10]; ML Defence [7].

[45] Classic Defence [7(d]; Fong Defence [7]; Contour Defence [7].

[47] Second Slaveski Affidavit, [5]; Exhibit SS-14 to the Second Slaveski Affidavit.

[48] Fong Defence [11F]; Contour Defence [11F].

[49] I have not sought to summarise all of the terms of the Sale Contract, just those which are particularly relevant here.

[51] Fong Defence [2]. The balance of the terms of the Sale Contract referred to in each of the below sub-paragraphs are drawn from the same source. See also Contour Defence [2].

[52] First Slaveski Affidavit, [7]; Exhibit SS-2 to the First Slaveski Affidavit.

[53] First Slaveski Affidavit, [14]; Fong Defence, [4(a)(i)], [11B]. The dates and periods of the various extensions are set out in those paragraphs. See also Contour Defence [11B].

[54] First Slaveski Affidavit, [14]-[15]; Exhibit SS-5 to the First Slaveski Affidavit.

[55] First Slaveski Affidavit; [16]; Exhibit SS-6 to the First Slaveski Affidavit.

[56] First Slaveski Affidavit, [17]; Exhibit SS-7 to the First Slaveski Affidavit.

[57] First Slaveski Affidavit, [18]; Exhibit SS-8 to the First Slaveski Affidavit.

[58] Fong Defence [11G]; Contour Defence [11G]; First Slaveski Affidavit, [20]; Exhibit SS-10 to the First Slaveski Affidavit.

[59] Fong Defence [11I]; Contour Defence [11I]; First Slaveski Affidavit, [21]; Exhibit SS-11 to the First Slaveski Affidavit.

[60] Fong Defence [11J]; Contour Defence [11J]; First Slaveski Affidavit, [23].

[62] Fong Defence [11L]; Contour Defence [11L].

[63] See paragraph 59 above.

[64] Plaintiffs' Written Submissions, [24]-[25].

[65] Plaintiffs' Written Submissions, [9].

[66] Plaintiffs' Written Submissions, [21].

[67] Plaintiffs' Written Submissions, [8].

[69] Exhibit SS-2 to the First Slaveski Affidavit.

[71] Elvin Affidavit, [6]; Exhibit MPE-2 to the Elvin Affidavit.

[72] Elvin Affidavit, [7]; Exhibit MPE-3 to the Elvin Affidavit; Holmes Affidavit, [4].

[73] Elvin Affidavit, [15]; Exhibit MPE-7 to the Elvin Affidavit.

[74] Elvin Affidavit, [16]; Exhibit MP-8 to the Elvin Affidavit.

[76] First Slaveski Affidavit, [24]; Exhibit SS-13 to the First Slaveski Affidavit.

[81] Second Vorontsov Affidavit, [4]-[7]; Third Vorontsov Affidavit, [5]-[8].

[84] Elvin Affidavit, [14]; Exhibit MPE-6.

[88] SLA, s 24(1).

[89] SLA, s 24(2).

[90] SLA, s 26.

[91] SLA, s 27(1).

[92] SLA, s 27(3).

[93] Re Giovanni Tenuta; Pina Tenuta and Dominic Tenuta Ex Parte: Australia and New Zealand Banking Group Limited [1991] VCA 580, [19] ('Re Giovanni Tenuta').

[94] Plaintiffs' Written Submissions, [6].

[95] Plaintiffs' Written Submissions, [5].

[96] Second Vorontsov Affidavit, [4]; Third Vorontsov Affidavit, [5]; Exhibit DV-2. See also Plaintiffs' Written Submissions, [2]. The errors in spelling contained in these documents.

[97] Exhibit DV-2 to the Second Vorontsov Affidavit.

[104] Second Vorontsov Affidavit, [9].

[105] Second Vorontsov Affidavit, [9].

[106] Second Vorontsov Affidavit, [9].

[107] Second Vorontsov Affidavit, [9].

[109] First Slaveski Affidavit, [10].

[110] Second Slaveski Affidavit, [4].

[111] Second Slaveski Affidavit, [7].

[112] Second Slaveski Affidavit, [8].

[113] The "..." in the below extract (except for those in the extract beginning "Ohh I just asked", where the "..." is part of the text) are to signify where emoticons were used or photos attached, no text has been omitted from the extract from exhibit SS-16.

[114] Second Slaveski Affidavit, [9]-[10].

[115] Second Slaveski Affidavit, [11].

[116] First Fong and Contour Written Submissions, [27].

[117] First Fong and Contour Written Submissions, [28].

[118] First Fong and Contour Written Submissions, [29].

[119] First Fong and Contour Written Submissions, [30].

[120] First Fong and Contour Written Submissions, [31].

[121] Exhibit SS-19 to the Second Slaveski Affidavit.

[122] Second Vorontsov Affidavit, [9].

[123] Fong and Contour Supplementary Written Submissions, [17].

[124] Fong and Contour Supplementary Written Submissions, [18].

[125] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [42], [43], [46].

[126] I note that by an amended summons filed earlier that day, the same application was made, but in respect of OBRE rather than Jamelissa. Since that was superseded by the further amended summons, I do not need to consider it.

[127] Fong Defence [13]; Contour Defence [13]..

[128] First Slaveski Affidavit, [24]; Exhibit SS-13 to the First Slaveski Affidavit.

[129] First Slaveski Affidavit, [24]-[25].